Blair v. M. McCormack Construction Co., 107 N.Y.S. 750

Blair v. M. McCormack Construction Co.

107 N.Y.S. 750 | N.Y. App. Div. | 1907

Jenks, J.:

Lord Brougham said: “ In my mind he was guilty of no error, he was chargeable with no ■ exaggeration, he ivas betrayed by his fancy into no metaphor who once -said, that all "we see about us, Kings, Lords and Commons, the whole machinery of the State, all the apparatus of the system and its varied workings, end in simply bringing twelve good men into a "box. ” (Present State of the Law, 5.)

A jury implies-twelve competent and disinterested men. “The question for the triors is whether the juror is, as he assuredly should be, altogether indifferentyand if they find he is not, it is their duty to reject him.” (Peckham, J., in Butler v. G. F. S. H. & F. E. S. R. R. Co., 121 N. Y. 118.) A stockholder in a corporation which had underwritten the liability of- tlie defendant might well be' objectionable as a jhror to the plaintiff. - (See Grant v. National Railway Spring Co., 100 App.. Div. 234; Mechanics & Farmers' Bank v. Smith, 19 Johns. 115; People v. Bodine, 1 Den. 281, cited in Butler's Case, supra.) The reason for the provision in section 1180 of the - Code of Civil Procedure The fact that a .juror is in the employ , of a party to the action ; o.iyif a party to the action is a cor pora tib'n, that- he is an employe thereof or a shareholder or a stockholder therein, shall constitute a good ground fór a challenge to the favor *33as to. such juror,” obtains to a degree. Cosselmon v. Dunfee (172 N. Y. 507) is not authority against the course pursued by the plaintiff in his examination of the jury on voir dire. That case holds that inquiry of a witness into this matter of assurance is not material and should be excluded. To extend the rule to the question up in this case is to exclude an inquiry pertinent and proper on its face, because it may permit the jury to infer from the' inquiry that the defendant was assured. In Cosselmon’s Case (supra) the fact that the question was asked of a witness indicated that the primary purpose thereof was to elicit an immaterial fact. But the inquiry in the case at bar was legitimate, and any sinister purpose behind the apparent purpose may be a matter of inference. On the mere face of things the court cannot exclude a proper question.for the reason that the court infers that there may be or is an ulterior motive. ’ (Grant v. National Railway Spring Co., supra.) The learned court sustained the objection to the specific question, and fully cautioned the jury that the mention of the assurance company must not influence it and had no bearing on the case. I think that the caution was sufficient to secure the rights of the defendant (Stouter v. Manhattan Railway Co., 127 N. Y. 661), and that the learned court was not warranted in thereafter setting aside the judgment. As a rule tactics of indirection prejudice a jury against the tactician and carry their own punishment.

I think that there is no error in the record which would justify a reversal, and that the case made out by the plaintiff is sufficient to support the verdict.

The order is reversed, with''costs and disbursements, and the yerdict is reinstated.

Woodward, Hooker and Miller, JJ., concurred; Hiesohberg, P. J., not voting.

Order reversed, with costs and disbursements, and verdict reinstated.